By Tillery, et al. H.B. No. 1483
74R5814 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of certain practices by funeral
1-3 directors, embalmers, and mortuary schools.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsection L, Section 1, Chapter 251, Acts of the
1-6 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
1-7 Texas Civil Statutes), is amended to read as follows:
1-8 L. A "commercial embalmer" or "commercial embalming
1-9 establishment" is one that embalms for licensed funeral
1-10 establishments and does not sell any services or merchandise
1-11 directly or at retail to the public, and shall otherwise meet the
1-12 requirements of a licensed embalmer as provided in this Act. The
1-13 terms do not include a school or college of mortuary science. A
1-14 commercial embalmer or a commercial embalming establishment may not
1-15 employ an embalmer who is not licensed under this Act.
1-16 SECTION 2. Subsection H, Section 3, Chapter 251, Acts of the
1-17 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
1-18 Texas Civil Statutes), is amended to read as follows:
1-19 H. The commission may, after a hearing as provided by
1-20 Section 6C of this Act, reprimand, assess an administrative
1-21 penalty, revoke, suspend, or probate the suspension of a license or
1-22 provisional license, or impose any combination of these sanctions
1-23 against a licensed funeral director, a licensed embalmer, or a
1-24 provisional licensee. The commission may assess an administrative
2-1 penalty without a hearing if the penalty is assessed in the manner
2-2 provided by Section 6G of this Act. Action taken by the commission
2-3 under this section may be based only on a violation of this Act or
2-4 a rule adopted under this Act. The commission may refuse without a
2-5 hearing to license a person or to permit a person to serve as a
2-6 provisional licensee if the person has violated this Act or a rule
2-7 adopted under this Act. A person whose license or provisional
2-8 license application is refused under this subsection may appeal the
2-9 decision by requesting a hearing not later than the 30th day after
2-10 the date of the refusal. The commission and the person whose
2-11 application for license or provisional license is refused may agree
2-12 to the issuance of a probationary license or the commission may,
2-13 after a hearing, order that a license be issued on a probationary
2-14 basis. A violation of this Act includes the following:
2-15 1. The presentation to the commission of any license,
2-16 certificate, or diploma that was illegally or fraudulently
2-17 obtained, or when fraud or deception has been practiced in passing
2-18 the examination;
2-19 2. Conviction of:
2-20 (A) a felony; or
2-21 (B) a misdemeanor related to the practice of
2-22 embalming or funeral directing;
2-23 3. Being unfit to practice as a funeral director
2-24 and/or embalmer by reason of insanity and having been adjudged by a
2-25 court of competent jurisdiction to be of unsound mind;
2-26 4. The use of any statement that misleads or deceives
2-27 the public, including but not limited to false or misleading
3-1 statements regarding (1) any legal, religious, or cemetery
3-2 requirement for funeral merchandise or funeral services, (2) the
3-3 preservative qualities of funeral merchandise or funeral services
3-4 in preventing or substantially delaying natural decomposition or
3-5 decay of human remains, (3) the airtight or watertight properties
3-6 of a casket or outer enclosure, or (4) representations as to
3-7 licensed personnel in the operation of a funeral establishment;
3-8 5. The purchase, sale, barter, or use, or any offer to
3-9 purchase, sell, barter, or use any license, certificate, or
3-10 transcript of license or certificate, in or incident to an
3-11 application to the commission for license to practice as a funeral
3-12 director and/or embalmer;
3-13 6. Altering, with fraudulent intent, any funeral
3-14 director and/or embalmer license, certificate, or transcript of
3-15 license or certificate;
3-16 7. The use of any funeral director and/or embalmer
3-17 license, certificate, diploma or transcript of any such funeral
3-18 director and/or embalmer license, certificate, or diploma that has
3-19 been fraudulently purchased, issued, counterfeited, or materially
3-20 altered;
3-21 8. The impersonation of, or acting as proxy for,
3-22 another in any examination required by this Act for a funeral
3-23 director and/or embalmer license;
3-24 9. The impersonation of a licensed funeral director or
3-25 embalmer as authorized by this Act, or permitting or allowing
3-26 another to use a person's license or certificate to practice as a
3-27 funeral director or embalmer in this state;
4-1 10. A violation of Section 1, 5, or 9, Chapter 512,
4-2 Acts of the 54th Legislature, Regular Session, 1955 (Article 548b,
4-3 Vernon's Texas Civil Statutes), or a rule adopted under that Act;
4-4 11. Taking custody of a dead human body without the
4-5 permission of the person or the agent of the person authorized to
4-6 make funeral arrangements for the deceased, or without the
4-7 permission of the medical examiner or justice of the peace when a
4-8 medical examiner or justice of the peace has jurisdiction over the
4-9 body under Articles 49.02, 49.03, 49.04, and 49.05, Code of
4-10 Criminal Procedure, refusing to promptly surrender a dead human
4-11 body to a person or agent authorized to make funeral arrangements
4-12 for the deceased, or embalming a body without the express written
4-13 or oral permission of a person authorized to make funeral
4-14 arrangements for the deceased or without making a documented
4-15 reasonable effort over a period of at least three (3) hours to
4-16 obtain the permission;
4-17 11A. Embalming or attempting to embalm without proper
4-18 authority a dead human body. Evidence of embalming or attempting
4-19 to embalm includes, but is not limited to, the making of any
4-20 incision on the body, the raising of any circulatory vessel of the
4-21 body, or the injection of any chemical into the body;
4-22 12. Wilfully making any false statement on a
4-23 certificate of death or on a document required by this Act or by a
4-24 rule adopted under this Act;
4-25 13. Employment directly or indirectly of any
4-26 provisional licensee, agent, assistant, embalmer, funeral director,
4-27 employee, or other person on a part or full-time basis, or on
5-1 commission, for the purpose of soliciting individuals or
5-2 institutions by whose influence dead human bodies may be turned
5-3 over to a particular funeral director, embalmer, or funeral
5-4 establishment;
5-5 14. Presentation of false certification of work done
5-6 as a provisional licensee;
5-7 15. Unfitness by reason of present substance abuse;
5-8 16. Whenever a licensee, provisional licensee, or any
5-9 other person, whether employee, agent, representative, or one in
5-10 any manner associated with a funeral establishment engages in
5-11 solicitation as defined in this Act;
5-12 17. Failure by the Funeral Director in Charge to
5-13 provide licensed personnel for direction or personal supervision
5-14 for a "first call," as that term is defined in this Act;
5-15 18. Misappropriation of any funds held by a licensee,
5-16 funeral establishment, including its employees and agents, or other
5-17 depository, that create an obligation to provide a funeral service
5-18 or merchandise, including retention for an unreasonable time of
5-19 excess funds paid by or on behalf of the consumer for which the
5-20 consumer is entitled to a refund;
5-21 19. Performing acts of funeral directing or embalming,
5-22 as those terms are defined in this Act, that are outside the
5-23 licensed scope and authority of the licensee, or performing acts of
5-24 funeral directing or embalming in a capacity other than that of an
5-25 employee, agent, subcontractor, or assignee of a licensed funeral
5-26 establishment that has contracted to perform those acts;
5-27 20. Engaging in fraudulent, unprofessional, or
6-1 deceptive conduct in providing funeral services or merchandise to a
6-2 consumer;
6-3 21. Statement or implication by a funeral director or
6-4 embalmer that a customer's concern with the cost of any funeral
6-5 service or funeral merchandise is improper or indicates a lack of
6-6 respect for the deceased;
6-7 22. Failure by any person arranging for funeral
6-8 services or merchandise to:
6-9 (A) provide a prospective customer with a copy
6-10 of the brochure required by Section 6E of this Act at the beginning
6-11 of the arrangement process;
6-12 (B) provide a retail price list to an individual
6-13 inquiring in person about any funeral service or merchandise for
6-14 that person to keep;
6-15 (C) explain to the customer or prospective
6-16 customer that a contractual agreement for funeral services or
6-17 merchandise may not be entered into before the presentation of the
6-18 retail price list to that person; or
6-19 (D) provide general price information by
6-20 telephone within a reasonable time;
6-21 23. Failure by any person arranging for funeral
6-22 services or merchandise to provide each customer at the conclusion
6-23 of the arrangement process a written memorandum or funeral purchase
6-24 agreement signed by the funeral director making the arrangements
6-25 itemizing the cost of funeral services and funeral merchandise
6-26 selected by the customer; however, if the customer selects a
6-27 package arrangement based on unit pricing, the itemization
7-1 requirement is satisfied by providing a written memorandum that
7-2 itemizes the discount provided by the package arrangement. The use
7-3 of unit pricing does not affect the presentation of the retail
7-4 price list as required by Subdivision 22 of this subsection;
7-5 24. Restricting, hindering, or attempting to restrict
7-6 or hinder (1) the advertising or disclosure of prices and other
7-7 information regarding the availability of funeral services and
7-8 funeral merchandise that is not unfair or deceptive to consumers,
7-9 or (2) agreements for funeral services between any consumer or
7-10 group of consumers and funeral directors or embalmers;
7-11 25. Failure to retain and make available to the
7-12 commission, upon request, copies of all price lists, written
7-13 notices, embalming documents, and memoranda of agreement required
7-14 by this Act for two (2) years after the date of their distribution
7-15 or signing;
7-16 26. Violation of this Act, any rule adopted under this
7-17 Act, an order by the commission revoking, suspending, or probating
7-18 a license, an order assessing an administrative penalty, or an
7-19 agreement to pay an administrative penalty regardless of whether
7-20 the agreement is express or implied by Section 6G(d) of this Act;
7-21 27. Dishonest conduct, wilful conduct, negligence, or
7-22 gross negligence in the practice of embalming or funeral directing
7-23 that is likely to or does deceive, defraud, or otherwise injure the
7-24 public;
7-25 28. Allowing the use of a dead human body by an
7-26 unlicensed embalming establishment for research or educational
7-27 purposes without the written permission of the family or person
8-1 arranging the funeral; <and>
8-2 29. Causing the execution of a document by the use of
8-3 fraud, deceit, or misrepresentation; and
8-4 30. Using or allowing the use of a dead human body for
8-5 research, educational, or instructional purposes without complying
8-6 with the requirements of Section 4A of this Act.
8-7 SECTION 3. Chapter 251, Acts of the 53rd Legislature,
8-8 Regular Session, 1953 (Article 4582b, Vernon's Texas Civil
8-9 Statutes), is amended by adding Section 4A to read as follows:
8-10 Sec. 4A. USE OF BODY BY SCHOOL OF MORTUARY SCIENCE. (a) A
8-11 school or college of mortuary science may not use a dead human body
8-12 for research, educational, or instructional purposes unless the
8-13 school or college has the written consent of the person authorized
8-14 to consent to the use of the body for research, educational, or
8-15 instructional purposes. To be effective, the written consent under
8-16 this subsection must comply with the requirements of Chapter 691 or
8-17 692, Health and Safety Code.
8-18 (b) The written consent of a person authorized to consent to
8-19 the use of a dead human body for research, educational, or
8-20 instructional purposes by a school or college of mortuary science
8-21 may not be included as part of a written memorandum or funeral
8-22 purchase agreement. The consent must be made in a separate
8-23 document or agreement that satisfies the requirements of Chapter
8-24 691 or 692, Health and Safety Code.
8-25 (c) A copy of the written consent required under Subsection
8-26 (a) of this section shall be retained by both the funeral home and
8-27 the school or college of mortuary science as part of the permanent
9-1 records of the funeral home and the school or college. The records
9-2 of the funeral home and school or college maintained under this
9-3 subsection shall be available for inspection by the commission, the
9-4 Anatomical Board of the State of Texas, the person who provided the
9-5 consent, or the next of kin of the deceased person.
9-6 (d) A funeral director or embalmer may not release a dead
9-7 human body to a school or college of mortuary science for research,
9-8 educational, or instructional purposes, and a school or college of
9-9 mortuary science may not accept a dead human body for research,
9-10 educational, or instructional purposes, without actual possession
9-11 of the written consent required under Subsection (a) of this
9-12 section.
9-13 SECTION 4. Subchapter B, Chapter 691, Health and Safety
9-14 Code, is amended by adding Section 691.0341 to read as follows:
9-15 Sec. 691.0341. USE OF BODIES BY SCHOOLS OF MORTUARY SCIENCE.
9-16 (a) The board may adopt rules governing the use of a dead human
9-17 body for research, educational, or instructional purposes by a
9-18 school or college of mortuary science and the manner by which
9-19 consent must be obtained before the use is permitted.
9-20 (b) The board may not adopt a rule under this section that
9-21 is inconsistent with Section 4A, Chapter 251, Acts of the 53rd
9-22 Legislature, Regular Session, 1953 (Article 4582b, Vernon's Texas
9-23 Civil Statutes).
9-24 SECTION 5. This Act takes effect September 1, 1995, and
9-25 applies only to the use of a dead human body for research,
9-26 educational, or instructional purposes on or after that date.
9-27 SECTION 6. The importance of this legislation and the
10-1 crowded condition of the calendars in both houses create an
10-2 emergency and an imperative public necessity that the
10-3 constitutional rule requiring bills to be read on three several
10-4 days in each house be suspended, and this rule is hereby suspended.